Purpose and Powers of the Court to Issue Commissions

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You must have wondered what happens in a situation where the witness is unable to attend the court hearing. Questions like now what will happen in the case usually arise. 

In the cases of sickness on infirmity or detriment to public interest or because of the reason that the witness is residing beyond the local limits of the court jurisdiction, A witness may not be able to attend court hearing. 

Keeping in mind this issue the court has the power to issue commission under CPC civil procedure code. However it is the rule of jurisprudence, all proceedings must take place in the presence of the parties and before the court. under certain unavoidable circumstances before the court such work is performed by the means of commission. 

The main aim and the idea of issuing a commission by the court is to impart justice to the parties.

What is meant by the issue of commission by the court? 

A role given by the court to a person who is required to act on behalf of the court and deliver full and complete justice. The duty of this person appointed by the court is to record the evidence of a witness who is unable to visit the court. 

Who has the authority to appoint a commissioner? 

Section 75 of the code provides that the court has the authority to issue commission keeping in mind the limitations and restrictions. Thus the court has discretionary power to appoint the commissioner. 

Rule 2 and 6, State that the court may issue such a commission either so Moto or on the application of any party or witness. A commissioner is usually an advocate who is in the panel of High Court.
 

What steps must be taken in the commissioner appointment process?

A High Court order may extend the term of such an appointment, which is typically three years, but no commissioner may be appointed after that period of time has passed. As per the Article 227, every High Court may enact rules and guidelines that the lower Courts must abide by. A panel of up to four commissioners, appointed by the court to record the evidence, will be made up of young people, including a woman attorney.

Authority that comes under a commissioner: 

• He may question any parties, witnesses, or other people connected to the mentioned subjects that he deems appropriate to call as witnesses.
• He can access and examine all documents and other case-related items.
• He is permitted to enter any buildings that have been mentioned in the orders within a reasonable amount of time.

The Karnataka High Court ruled in Putappa v. Ramappa A.I.R.1996, that following the issuance of a perpetual injunction, where the issue is the possession of property,

When can a commission be issued? 

Section 75 to 78 and order number 26 of the CPC deal with the power of the court to issue a commission. 

1. The commission must take place for the examination of a witness. Order 26 rule one lays down the court may issue a commission for examination or otherwise of any person: 
   • When such a person resides within the local limits of the court‘s jurisdiction
   • The person is exempted under the court from attending the court
   • Due to sickness or infirmity he or she is unable to attend the court.
2. Rule 4 of the same also talks about the commission being issued under the circumstance when a government servant is unable to attend the hearing due to his performance of duty. The main duty of the commissioner is to provide the court with evidence. 
3. As per rule nine, order 26 The court may issue the commission for the purpose of local investigation for the following reasons:-
   • In order to explain any disputed issue
   • For the purpose of determination of market value of a property
   • In order to determine profit damages annual net profits etc. 
4. order 26 rule 13, for the issue of commission for partition of immovable property. In case of  a preliminary decree of partition of immovable property has been passed further the court may issue a commission to make an actual separation or partition. Here the commissioner has to prepare a report appointing the share of each party and distinguishing the shares. 
5. For the purpose of scientific investigation the provision has been provided under order 26 rule 10 A if as per the court a scientific issue is present in the case The court may issue scientific investigation.
6. Rule 10 B of the order 26 states the issue of commission for the performance of ministerial acts as per this when a court finds the suit before it any question of performance of ministerial actors involved then it can issue commission in the interest of justice.
7. Rule 10 C talks about for the sale of movable property it is essential to sell an immovable property which is in its courts custody and the same cannot be conveniently preserved here the court issues a commission subject to speedy and natural decay.

Evidentiary value of the report submitted by the Commissioner:

The report and evidence submitted by commissioners are included in record as per in order 26 rule 10 (2) However, the Evidence that is submitted without the report of the Commissioner does not form part of any record. The report is a crucial component of the case and can only be refuted on strong evidence. 

Conclusion:

The commissioner only has the duty to assist the court by providing the documents and  in carrying out the various judicial functions; it can in no form perform judicial functions on behalf of the court. Commissioners can only exercise the power granted by the court. Thus the commission has been issued by the court to provide full and complete justice.